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The paternity case very often comes up in the child support context. That is, Momma says so and so is the Daddy; goes to the Attorney General for child support assistance and says this is him. The Texas Attorney General then brings a child support case. The following bullet points discuss the varous presumptions associated with the birth of a child.
Parentage – who is the father of the child? A man is presumed to be the father of a child if:
- He is married to the mother and a child is born during the marriage. The Husband is, therefore, the presumed Father. Becomes problematic if Wife/Mother had a relationship outside of the marriage and a child was born — who is the father? It is presumed that the Husband is.
- He is married to the mother of the child and they divorced. A child was then born by the 301st day after the date of divorce. The former Husband is the presumed father of the child. This usually occurs because the mother did not know she was pregnant at the time of the divorce. So, if a child is born by the 301st day after the date of divorce, the former husband is the presumed father.
- He married the mother of the child in apparent compliance with the law but the marriage was invalid for some reason and a child is born during the marriage or by the 301st day after the marriage ceased – date of divorce or date of annulment. What could invalidate a marriage – marriage under the age of 18 without parental consent; marriage under the age of 16, a marriage to one’s step-brother or step-sister.
- He married the mother of the child after the child was born, he voluntarily asserted his paternity over the child; and the assertion is voluntarily filed with bureau of vital statistics or he is voluntarily named as the father of the child on the child’s birth certificate or he promised in a record to support the child.
- He, during the first two years of the child’s life, continuously resided in the household in which the child resided and he represented to others that the child was his. I call this – common law parentage.
The presumption of paternity may only be rebutted by (1) an adjudication – filing a lawsuit and obtaining a court order adjudicating the presumed father to not be the father or (2) the filing of a valid denial of paternity together with the filing of a valid acknowledgement of paternity, i.e., husband files a valid denial of paternity and boyfriend of wife files a valid acknowledgement of paternity. Call this the “Dad Substitution Rule.”
- A divorce decree is an adjudication of parentage.
Acknowledgment of Paternity
- Paternity may also be established by filing an unchallenged acknowledgement of paternity. A valid acknowledgement of paternity filed with the bureau of vital statistics is the equivalent of an adjudication of the paternity of a child and confers on the acknowledged father all rights and duties (child support) of a parent. The acknowledgment of paternity cannot be ratified by a court.
- An Acknowledgment of Paternity is void if it states that another man is the presumed father – unless the presumed father files a denial of paternity.
- An Acknowledgment of Paternity is void if it states that another man is an acknowledged or adjudicated father of a child.
- An Acknowledgment of Paternity is void if it falsely denies the existence of a presumed or acknowledged father of a child.
- A person signing an Acknowledgement of Paternity may rescind the document by commencing a proceeding (legal action) within 60 days after the effective date of the acknowledgement or before the first hearing on a proceeding to adjudicate an issue related to the child (child support). You have 60 days to change your mind after signing the acknowledgment.
- A person may challenge an acknowledgment or denial of paternity within 4 years after the document was filed on the basis of fraud, duress or material mistake of fact. If you have been defrauded, you have four years to get it undone then you are over and out. Doesn’t matter that the child is not yours or turned out to be yours.
Genetic Testing
- A court must order genetic testing if requested to do so by a party. If the presumed father refused to submit to genetic testing, the court can take his refusal as an admission and adjudicate the that person as the father of the child. You lose.
- If the presumed father or the alleged father is missing (cannot be found – he ran off), the court can order genetic testing of relatives including dead people if the need for genetic testing outweighs the legitimate interest of the individuals sought to be tested. They can dig grandpa up and test him to get a genetic test.
- A man is rebuttably identified to be the father of the child if the man has at least a 99% probability of paternity. If the markers are there by 99%, you are Dad. This result may be rebutted by other genetic testing that rebuts the 99% result. You can also ask for a second test. If the second test proves you to be the father, you pay for it.
- If more than one man is identified as the father of the child, the court shall order each man to submit to further genetic testing.
- Identical Brothers (Twins). If both brothers cannot be excluded by testing as the father of the child, then the court may rely on other evidence to adjudicate which brother is the father of the child.
- If a child has a presumed, acknowledged or adjudicated father, the results of genetic testing are inadmissible to adjudicate parentage unless performed with the consent of the mother or under an order from the court. You cannot get the results of a genetic test into evidence, if both parties did not agree or the court did not order it. The Trial Court may deny the request for genetic testing if the conduct of the mother and the presumed father estops (means Stop Sign – cannot proceed) that party from denying parentage and it would be inequitable (not fair) to disprove the father-child relationship.